What matters is what jurors think.
So far jurors seem less than enthusiastic about embracing the pile of charges heaped on the first of the standoff defendants.
When Bureau of Land Management agents and their hired cowboys showed up at Cliven Bundy’s ranch in April 2014 to confiscate his cattle — for which he had refused to pay grazing fees for decades — hundreds of people showed up to exercise their First Amendment right to protest. Some also exercised their Second Amendment right to bear arms.
A year and half ago prosecutors filed charges of obstruction of justice, conspiracy, extortion, assault and impeding federal officers among other things against 17 of those protesters, including Bundy and four of his sons. Until this past week all remained jailed without bail.
The defendants were separated into three groups for trial. The first trial took place in April with the other two to follow shortly thereafter. But those plans went awry.
The April trial of six men ended with no one being convicted of conspiracy, the most serious charge. Two men were convicted of some of the charges and jurors hung on the remaining four. Jurors told defense lawyers after the trial they never came close to convicting four defendants, voting 10-2 in favor of acquitting two of them and splitting on the others.
Despite the majority of jurors in the first trial voting to acquit, all four were retried. This past week the jurors in that trial — despite not being allowed to hear defense arguments about constitutional rights or possible law enforcement excesses —reached not-guilty verdicts on 34 of 40 counts.
The six men and six women acquitted Ricky Lovelien of Oklahoma and Steven Stewart of Idaho of all charges.
The jurors could not reach a unanimous verdict on four counts against Eric Parker and two counts against Scott Drexler. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts.
Prosecutors nonetheless have decided to retry Drexler and Parker on those six counts in September, meaning the remaining 11 defendants will have their trials pushed back yet again, even though the Sixth Amendment guarantees a speedy trial.
Drexler and Parker, both of Idaho, are being allowed to return home pending their third trial on ever dwindling charges.
Cliven Bundy’s attorney, Brett Whipple, and the attorneys for several other defendants have filed motions seeking to have their clients released pending trial.
“Our position has always been that it’s political instead of criminal,” Whipple told the Las Vegas newspaper. “And now it seems to be subjective instead of factual. There’s a whole fairness issue that I think is overlooked.”
Etched on the facade of the Supreme Court building in Washington is: “Equal Justice Under Law.”
In the Bunkerville standoff prosecution thus far two have been convicted of some charges, two acquitted of all charges and two face retrial on some charges, reportedly due to the intransigence of one juror.
Only one man has been sentenced, and his conviction may have had less to do with what he said and did at the standoff than what he said afterward.
Gregory Burleson, an avowed Arizona militiaman, told an undercover FBI agent posing as a documentary filmmaker, “I was hell bent on killing federal agents that had turned their back on we the people.”
Burleson testified, “Yes, I said a lot of crazy things. I’m ashamed of them actually. … Looking back at them, it’s like, ‘Wow, obviously I shouldn’t drink.’”
He was sentenced to 68 years in prison. For shooting off his mouth, not his guns?
Shortly after Cliven Bundy, 71, was arrested the prosecution argued that “Bundy is a danger to the community and poses a risk of non-appearance,” even though he agreed to any travel, firearm or GPS tracking restrictions the government might impose.
“Cliven Bundy is about as likely to hurt someone or to flee Nevada as a desert tortoise,” attorney Joel Hansen argued at the time. “It just isn’t going to happen.”
It costs nearly $90 a day to house a federal prisoner. Perhaps it is time, the judge considers freeing the remaining defendants on bail pending trial.